must be understood as “the particular ways in which legal norms come into existence”16, they share the same root17. Sources of law represent, in other words, different facets of law and law must be taken as a whole. It would, therefore, be misleading to enumerate legal sources in an assumed hierarchical order: Consider, for instance, statutory law.When defining the unique character of this source of law, Nordling refers, not to statutes as such, but to the institution “that has been specifically appointed, or assumed the power, to decide what the law is, within the realm of the state”.The “decrees of these institutions are called statutes” .The statutes and their effect on jurist are consequently only pale reflections of the exalted power of the institution – the Swedish Parliament – that enacts them. The overt political or ideological character of statutory law sets it apart from other legal sources. One could, of course, argue that customary law still retains just enough popular legitimacy to compete with statutory law in certain areas of law. Customary law may even be construed as the more democratic legal source of the two, since customs are founded on established patterns of behaviour made legally binding by the – at the time – erroneous conviction that they are normative (opinio juris sive necessitatis). According to Nordling, this has enticed some legal scholars to confuse customary law with the common sense of justice that human interaction and history inevitably will produce.That would, however, be a grave mistake, since it would mean that custom – as a source or carrier of law, is mistaken for the very basis of all law.20 Furthermore, this mix-up has led scholars to assume that the rules of customary law are absolutely and unconditionally binding, despite the fact that the deciding factor is extralegal in character. Nordling emphasized that only those customs that reflect the common sense of justice in society should prevail in the courts of law.When custom loses its footing in sore cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 300 16 Ibidem, p 26. 17 Ibidem, p 27. 18 Ibidem. 19 Ibidem. 20 Ibidem. “Such a disposition of different sources of law, placed one after another, is flawed, since it doesn’t convey a sense of the unity behind the development of law, even though such a unity obviously must exist”.18
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